Plaintiff was nonsuited in a prior action brought to recover for the same injuries against the same defendant, and judgment in favor of defendant was affirmed by the Appellate Division,. The costs of said action and of said appeal remain unpaid. Plaintiff now asks leave to sue again on the same cause of action and as a poor person, and to be relieved from the payment of the oosts of the former action. It was held by Bischoff, J., at Special Term, in May, 1894, that the statute allowing a party to sue as a poor person relates only to personal actions, and, with the expressed exception in the case of an infant suing by guardian ad litem, provides no justification for extending its application to persons acting in a representative capacity. Bechtle v. Manhattan R. Co., 31 Abb. N. C. 483. I do not find that this point has been passed upon except at Special Term. Orders authorizing an executor or administrator to sue as a poor person have been granted; and, in the recent cases of Daus v. Nussberger, 25 App. Div. 185, and Young *8v. Nassau Electric R. Co., 34 App. Div. 126, while the court denied the plaintiff the privilege, the reasons therefor were other than the fundamental reason that the court had no jurisdiction in any case to permit a person suing in a representative capacity to sue as a poor person.
I fail to see any substantial reason for denying this privilege to an executor or administrator in a proper case. Injustice might result if it were held that the court had no jurisdiction to make the order in such eases. The statute should not be so strictly construed as to defeat its purpose.
The Code of Civil Procedure (§ 461) provides that a person admitted to sue as a poor person shall not be prevented from prosecuting his action by reason of his being liable for costs in a former action brought by him against the same defendant, hut the adverse result of a previous action may properly be considered on the merits of plaintiff’s right to sue. Young v. Nassau Electric E. Co., 34 App. Div. 126.
In this case it appears that the plaintiff failed in the previous action hy reason of a total failure to prove what deceased was doing at the time of the accident which caused his death, which resulted in a failure to establish freedom from contributory negligence on his part. The affidavit of plaintiff’s attorney submitted on this motion alleges that the deceased’s freedom from contributory negligence will be established “hy further examining the witnesses sworn at the former trial and by producing and swearing another witness whose name is Ciro Oonnito, who informs deponent that he saw the whole of said accident and stood by the deceased on the third floor at the same time of the accident and saw and will swear to what the deceased was doing and* the manner by which he came to suffer the accident.” The affidavit fails to state what facts these witnesses will testify to. It fails to state more than the conclusion of plaintiff’s attorney that he will be able to establish deceased’s freedom from contributory negligence upon the trial of the new action.
The moving papers must set forth facts showing that the applicant has a good cause of action. Mere advice of counsel is insufficient for that purpose. The moving papers wholly *9fail to indicate what the deceased was doing at the time of the accident and nothing is before the court, except the certificate of counsel, to indicate that he was free from contributory negligence. This is insufficient. Weinstein v. Frank, 56 App. Div. 275. Plaintiff further fails to state any reason why her proofs were not made on the trial of the previous action.
It is elementary that freedom from contributory negligence must be established as a part of plaintiff’s affirmative case and she should have been ready with such proof, if it existed, before bringing the case to trial.
In the ease of Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 494, the court held that the provisions of section 779 of the Code, requiring payment of costs before any proceeding can be had on the part of the party required to pay the same, applies to the payment of costs in an action where another action is commenced between the same parties to recover upon the same cause of action. Plaintiff should not be relieved from this requirement unless she satisfactorily shows to the court that the failure of proof on the previous trial was due to no lack of diligence on her part and produces affidavits of witnesses showing the existence of facts which will supply the failure in proof on the previous trial.
Plaintiff’s motion is denied, and defendant’s motion is granted, without costs to either party.